Don't Sit On Your Rights - BPI Energy, Inc. v. IEC, LLC, (ILSD, Doc. No. 07-cv-186)
We have seen this before, and will likely continue to see it.
A party sits on its rights a little too long. During the initial phases of litigation it replies and responds and files motions to dismiss and a year goes by. Sometime, somewhere, someone reads the agreement again and says: "hey, maybe we should arbitrate this under the arbitration provision in our contract." Their motion to remove the case to arbitration is denied by a judge finding that their answers and motions to dismiss, along with active participation in litigation amounts to waiver.
They spent time and energy drafting their contract, negotiating its provisions, sometimes in the context of a project or development that amounts to hundreds of millions. And now, they cannot avail themselves of the benefits of their negations. Arbitration was chosen as a provision and likely negotiated on, and if it's the method you choose for the resolution of your dispute, you need to remember to act on it.
